1. Trafficking in dangerous drugs under s 39B(1)(a) Dangerous Drugs Act 1952 — Methamphetamine — Arrest at ferry terminal with concealed drugs — Conviction and sentence. (Para 1 , 2 , 3 , 4 , 5 )
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2026 MarsdenLR 1733
HIGH COURT SABAH & SARAWAK TAWAU
STEVE RITIKOS, JC
PP – Appellant
Versus
AMRIADI – Respondent
[Criminal Case No: TWU-45A-6-3/2025]
Petitioner Advocates:Nur Nisla Abdul Latif; DPP ,Respondent Advocate: Jhesseny Kang
Actual possession of dangerous drugs, particularly when concealed on the body, triggers the statutory presumption of trafficking under s 37(da) of the Dangerous Drugs Act 1952, shifting the burden to the accused to rebut on a balance of probabilities.
Headnote:(A) Dangerous Drugs Act 1952 - Sections 37(d), 37(da)(xvi), 39B(1)(a), 39B(2) - Criminal Procedure Code - Sections 180, 182A - Evidence Act 1950 - Sections 8, 45, 105 - Trafficking in dangerous drugs - Prima facie case - Presumption of trafficking - Possession and knowledge - Chain of custody - Discrepancy in identity of exhibits - Sentence - Discretion between death penalty and life imprisonment with whipping. (Paras 6, 9, 20, 33, 35, 52)
(B) Prima facie case - At close of prosecution's case, court must consider whether prosecution has adduced credible evidence proving each ingredient of offence which if unrebutted or unexplained would warrant a conviction - Court to subject prosecution evidence to maximum evaluation. (Paras 6, 7, 8)
(C) Possession and knowledge - To prove possession, prosecution must establish (a) knowledge of drugs, and (b) control or custody - Mental element or mens rea denotes conscious knowledge of existence and nature of subject property - In absence of admission, can be established through circumstantial evidence - Section 37(d) of Dangerous Drugs Act 1952 allows reliance on rebuttable presumption of possession upon proof of custody or control. (Paras 17, 19, 20)
(D) Trafficking - Once actual possession of drugs meeting threshold quantity is found, statutory presumption of trafficking under s 37(da)(vi) arises - Accused must rebut on balance of probabilities. (Paras 33, 35) (E) Chain of custody - Where chain of custody is intact and exhibits produced in court are same as those seized and analysed, no reasonable doubt arises as to their identity - Alleged discrepancies did not create reasonable doubt. (Paras 15, 38, 39) (F) Defence - Burden on accused to rebut presumption of trafficking on balance of probabilities - Bare denial is no defence - Doctrine of wilful blindness - Accused who deliberately shuts eyes to obvious facts is legally considered to have knowledge - Accused failed to raise reasonable doubt. (Paras 56, 57, 68) (G) Sentencing - Discretion to impose death penalty or life imprisonment with whipping - Public interest and seriousness of offence weighed - Life imprisonment with 12 strokes of whipping imposed. (Paras 74, 78, 80, 81)
Facts of the case:
The accused was charged with trafficking in 1,078.9 grams of methamphetamine under s 39B(1)(a) of the Dangerous Drugs Act 1952. On 11 October 2024, at Tawau Ferry Terminal, police officers conducting routine inspections observed the accused behaving suspiciously. A body search revealed a black belly binder concealing plastic packets, and further search in a room found five plastic packets of crystalline substances hidden in a woman's panty worn by the accused, using hip paddings for concealment. The substances were analysed by a chemist and confirmed to be methamphetamine weighing 1,078.9 grams. The accused's defence was denial of knowledge, claiming he was hired to transport 'high-quality crystal salt' for health purposes, and he challenged the chain of custody alleging mix-up with another arrest. (Paras 1, 3, 4, 5, 23, 43, 44, 45)
Findings of Court:
The court found that the prosecution proved identity and weight of drugs beyond reasonable doubt, and the accused had actual possession and knowledge based on physical custody, exclusive control, suspicious behaviour, and manner of concealment. The chain of custody was intact, and no break was found. The accused failed to rebut the presumption of trafficking on a balance of probabilities and failed to raise any reasonable doubt. The accused was convicted and sentenced to life imprisonment from date of arrest plus 12 strokes of whipping. (Paras 16, 29, 30, 62, 71, 72, 73, 81)
Issues: The main issues were whether the prosecution had established possession and knowledge of the drugs by the accused; whether the chain of custody was broken and identity of exhibits compromised; whether the presumption of trafficking applied; and whether the accused's defence of no knowledge and mix-up raised reasonable doubt. (Paras 9, 36, 56)
Ratio Decidendi: The court ruled that actual possession of drugs, especially when concealed on the body, gives rise to knowledge of the nature of the drugs, and when coupled with the statutory presumption of trafficking under s 37(da)(xvi), the burden shifts to the accused to rebut on a balance of probabilities. The court also affirmed that an unbroken chain of custody precludes any reasonable doubt as to identity of exhibits, and that bare denials or implausible explanations do not suffice to rebut the presumption or raise reasonable doubt. (Paras 28, 29, 33, 34, 35, 38, 39, 57, 68)
Result: Accused convicted and sentenced to life imprisonment from 11 October 2024 plus 12 strokes of whipping.
Legal Category Hierarchy
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crime and sentencing
- drug offences
- sentencing
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practice and procedure
- evidence
- criminal procedure
Table of Contents
2. Accused denied knowledge of drugs, claimed he was transporting crystal salt, and raised chain of custody discrepancies. (Para 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 )
3. Accused convicted of trafficking and sentenced to life imprisonment with 12 strokes of whipping. (Para 71 , 72 , 73 , 81 )
4. What are the standards for evaluating the case at the close of the prosecution's case and at the conclusion of the trial?
At the close of the prosecution's case, a prima facie case exists under s 180 CPC if credible evidence proves each ingredient. At trial's conclusion, the court must consider all evidence under s 182A CPC and decide if guilt is proved beyond reasonable doubt. (Para 6 , 7 , 8 , 9 , 52 , 53 , 54 , 55 )
5. How is the identity and weight of dangerous drugs proven in a drug trafficking trial?
By expert evidence of a chemist, which can be accepted on face value unless inherently incredible, and by establishing an unbroken chain of custody from seizure to analysis. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 36 , 37 , 38 , 39 , 40 , 59 , 60 , 61 , 62 , 63 )
6. What must the prosecution prove to establish possession of dangerous drugs?
The prosecution must prove physical control and knowledge of the nature of the drugs. Knowledge may be inferred from circumstances such as concealment, conduct, and exclusive control. (Para 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 57 , 58 , 64 , 65 , 66 , 67 , 68 , 69 , 70 )
7. When does the presumption of trafficking under s 37(da) of the DDA arise and how can it be rebutted?
The presumption arises upon proof of actual possession of a threshold quantity of dangerous drugs. The accused must rebut it on a balance of probabilities. (Para 31 , 32 , 33 , 34 , 35 , 56 )
8. What are the sentencing considerations under s 39B(2) DDA after the amendment giving courts discretion?
The court has discretion between death penalty and life imprisonment with whipping, considering mitigating factors, public interest, drug weight, and deterrence. (Para 74 , 75 , 76 , 77 , 78 , 79 , 80 )
JUDGMENT
Introduction
[1] The Accused was charged for trafficking in dangerous drugs under s 39B(1)(a) of the Dangerous Drugs Act 1952 ("DDA 1952") and punishable under s 39B(2) of the same Act. The amended charge reads as follows:
Bahawa kamu pada 11 haribulan Oktober 2024, jam lebih kurang 9.45 pagi, bertempat di tempat pemeriksaan penumpang, Jeti Terminal Feri Tawau, didalam daerah Tawau, didalam Negeri Sabah, telah mengedar dadah berbahaya iaitu Methamphetamine seberat 1,078.9 gram dan dengan itu kamu telah melakukan satu kesalahan dibawah s 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum dibawah s 39B(2) Akta yang sama.
Case For The Prosecution
[2] The Prosecution called a total of 5 witnesses. The evidence led by the crucial witnesses may be summarized as follows.
[3] On 11 October 2024, at approximately 9.45am, D/Sergeant Sopidi bin Johari (PW2), together with officers from the Travel Control Office ("TCO") Police and Auxiliary Police, was conducting routine inspections at the Balai Berlepas Terminal Feri Tawau (Departure Hall Ferry Terminal Tawau). During the course of duty, PW2 observed the accused behaving in a suspicious manner while approaching the departure points. PW2 stopped the accused, identified himself as a police officer, and requested the accused's identification card. A body search was conducted, during which PW2 discovered that the accused was wearing a black belly binder concealing plastic packets suspected to contain Methamphetamine.
[4] The Accused was escorted to the TCO room for a thorough search. There, five plastic packets (exh P8A-E) of crystalline substances were found hidden in a woman's panty (exh P13(2)) worn by the accused, with hip paddings (exhs 13(3) and 13(4)) used to conceal the packets. One packet was located at the front, while four were positioned at the back, two on each side of his bum. Instructed by PW2, photographs (exh P11 (1-6)) of the search and exhibits were taken by LKpl/D Jason anak Colony (PW3). Each of the plastic packets contained crystalline substances. PW2 and his team then brought the accused along with the drug exhibits to the Bahagian Siasatan Jenayah Narkotik ibupejabat Polis ("BSJN IPD") Tawau. The crystalline substances (exhs P8A(1) & (2) and P8B (1) & (2)) were subsequently weighed and recorded at 1,541.43 grams gross. PW2 lodged a police report (Report No Tawau/013528/24) (exh P14 (1-2)) and handed over the accused together with the exhibits to the Investigating Officer, Inspector Luqmannul Haqim bin Mohamad (PW5), with a handing-over note (exh P17) duly prepared and signed.
[5] On 23 October 2024, PW5 submitted the five packets (exhs P8A - E) to the Chemistry Department Malaysia, Kota Kinabalu. An acknowledgment receipt was issued (exh P7) for the exhibits sent. Science Officer and Chemist, Rita Tie Ung Ha (PW1), conducted an analysis and confirmed the substances to be Methamphetamine, with a nett weight of 1,078.9 grams. A laboratory report 24-FR-S-05772 dated 22 November 2024 (exh P10) was issued to certify the findings.
Duty Of The Court At The End Of Prosecution's Case
[6] The duty of the Court at the end of the prosecution's case is set out in s 180 of the Criminal Procedure Code which provides that:
"(1) when the case for the prosecution is concluded, the Court shall consider whether the prosecution has made out a prima facie case against the accused;
(2) if the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an acquittal;
(3) if the Court finds that a prima facie case has been made out against the accused on the offence charged the Court shall call upon the accused to enter his defence;
(4) for the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction."
[7] This Court had reminded itself of the guidelines enu
